[Federal Register Volume 77, Number 221 (Thursday, November 15, 2012)]
[Notices]
[Pages 68140-68144]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-27806]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
[Docket No. FR-5613-N-06-B]
Privacy Act of 1974; New System of Records, Office of General
Counsel E-Discovery Management System: Republication of System
Description and Solicitation of Comment
AGENCY: Office of the Chief Information Officer, HUD.
ACTION: Notice.
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SUMMARY: This notice solicits additional comment on a new system of
records for the Office of General Counsel (OGC) E- Discovery Management
System (EDMS). EDMS was first announced and described in a July 17,
2012, Federal Register notice, in which HUD solicited comment. Based on
comment received, this notice makes certain revisions to the
description of EDMS in the July 17, 2012, notice and solicits
additional comment. Additional clarification is provided regarding the
system of records: Category of Individuals Covered by the System; the
Purpose Category; Retention Use and Disposal of Records Category, and
System Location Category.
DATES: Comments Due Date: December 17, 2012.
ADDRESSES: Interested persons are invited to submit comments regarding
this notice to the Regulations Division, Office of General Counsel,
Department of Housing and Urban Development, 451 7th Street SW., Room
10276, Washington, DC 20410-0500. Communications must refer to the
above docket number and title. There are two methods for submitting
public comments. All submissions must refer to the above docket number
and title.
1. Submission of Comments by Mail. Comments may be submitted by
mail to the Regulations Division, Office of General Counsel, Department
of Housing and Urban Development, 451 7th Street SW., Room 10276,
Washington, DC 20410-0500.
2. Electronic Submission of Comments. Interested persons may submit
comments electronically through the Federal eRulemaking Portal at
http://www.regulations.gov. HUD strongly encourages commenters to
submit comments electronically. Electronic submission of comments
allows the commenter maximum time to prepare and submit a comment,
ensures timely receipt by HUD, and enables HUD to make them immediately
available to the public. Comments submitted electronically through the
http://www.regulations.gov Web site can be viewed by other commenters
and interested members of the public. Commenters should follow the
instructions provided on that Web site to submit comments
electronically.
Note:
To receive consideration as public comments, comments must be
submitted through one of the two methods specified above. Again, all
submissions must refer to the docket number and title of the rule.
No Facsimile Comments. Facsimile (FAX) comments are not acceptable.
Public Inspection of Public Comments. All properly submitted
comments and communications submitted to HUD will be available for
public inspection and copying between 8 a.m. and 5 p.m. weekdays at the
above address. Due to security measures at the HUD Headquarters
building, an advance appointment to review the public comments must be
scheduled by calling the Regulations Division at (202) 708-3055 (this
is not a toll-free number). Individuals with speech or hearing
impairments may access this number through TTY by calling the Federal
Relay Service at (800) 877- 8339. Copies of all comments submitted are
available for inspection and downloading at www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: For inquiries pertaining to Privacy
Act records, contact Donna Robinson-Staton, Chief Privacy Officer,
Department of Housing and Urban Development, 451 7th Street SW.,
Washington, DC 20410 (Attention: Capitol View Building, 4th Floor)
telephone number (202) 402-8073 (this telephone number is not toll
free). A telecommunications device for hearing- and speech-impaired
persons (TTY) is available by calling the Federal Relay Service's toll-
free telephone number (800) 877-8339.
[[Page 68141]]
SUPPLEMENTARY INFORMATION:
Background
Pursuant to the Privacy Act of 1974 (5 U.S.C. 552a) (Privacy Act),
HUD published in the Federal Register on July 17, 2012, at 77 FR 41997,
a notice that announced a new system of records for OGC's E-Discovery
Management System (OGC-EDMS), a system expected to significantly
improve the efficiency of OGC's processing of records during the
preservation, discovery, and processing of litigation requests when
litigation is ``reasonably anticipated'' \1\ and reduce the time HUD
staff spend on the document review and production process. OGC-EDMS is
in response to and consistent with e-discovery preservation and
production requirements in the Federal Rules of Civil Procedure.
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\1\ ``Reasonably anticipated'' is the legal test articulating
the standard for when the duty to preserve electronically stored
information begins. A key case is Pension Comm. of the Univ. of
Montreal Pension Plan v. Banc of Am. Secs., LLC, 05 Civ. 9016 (SAS),
2010 U.S. Dist. LEXIS 4546, at * 14-15 (S.D.N.Y. Jan. 15, 2010).
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The July 17, 2012, notice solicited public comment on OGC-EDMS for
a period of 30 days. The notice advised that EDMS would carry a final
effective date of August 16, 2012, unless HUD received comments which
would result in a contrary determination. HUD received public comment
in response to the July 17, 2012, notice. On August 15, 2012, at 77 FR
49011, HUD published a notice advising of a change the final effective
date of OGC-EDMS, the commitment to re-publish the description of OGC-
EDMS with certain clarifications, respond to public comments received
in response to the July 17, 2012, notice, and seek additional public
comment.
The system report was submitted to the Office of Management and
Budget (OMB), the Senate Committee on Homeland Security and
Governmental Affairs, and the House Committee on Government Reform
pursuant to Paragraph 4c of Appendix l to OMB Circular No. A-130,
``Federal Agencies Responsibilities for Maintaining Records About
Individuals,'' July 25, 1994 (59 FR 37914).
Discussion of Public Comments
In response to the July 17, 2012, notice, HUD received comments
from a national professional association representing trial lawyers,
and a coalition consisting of advocacy groups representing consumers,
as well as advocacy groups fighting racial injustice and housing
discrimination.
Comment: HUD should comply with the Federal Rules of Civil
Procedure and should not destroy original documents. The commenters
stated that OGC-EDMS should be regulated by the Federal Rules of Civil
Procedure. The commenters further stated that they had significant
concerns about the proposed retention and disposal policy which allowed
HUD's OGC to destroy litigation data when closing a case. The
commenters requested that original documents not be destroyed as part
of an electronic data purge, and that copies of the case data be made
available in the event of a Freedom of Information Act (FOIA) request
or the need to revisit a particular case or series of cases.
HUD Response: In response to the commenters' concerns about the
consistency of HUD's policies with the Federal Rules of Civil
Procedure, HUD is providing additional operational information about
EDMS and the other HUD electronic information systems. HUD is also
clarifying that when litigation is ``reasonably anticipated,'' related
electronic data is forensically copied and maintained in a secure
server environment separate from HUD's network servers as part of the
OGC-EDMS. In this secure server environment, electronic data is
preserved in a way that prevents metadata spoliation by the system or
the owner of the data. As part of the Electronic Discovery Reference
Model, HUD users are able to review and analyze the relevant electronic
data that has been forensically copied and maintained as part of the
EDMS. Reviewing the forensically copied electronic data within the EDMS
prevents users from altering or improperly handling original documents,
which is in all parties' interests.
After authorization from an OGC manager, such as an Associate
General Counsel or Regional Counsel, is received, OGC requests a case
to be closed within the EDMS. The case and related electronic
litigation data that has been copied and secured in a production
environment for the purposes of litigation, is purged electronically
from the EDMS. This purging does not include purging of electronic data
from its original source such as network servers. Electronic data is
properly retained on network servers and other sources as mandated by
the HUD's Office of General Counsel Records Disposition Schedule 2--
Legal Records, 2225.6 REV-1, CHG-APPENDIX 2 \2\ and HUD's Office of the
Chief Information Officer Electronic Mail Policy, 2400.1 REV01, CHG.\3\
These handbooks are available on HUD's web pages through hudclips.
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\2\ http://portal.hud.gov/hudportal/HUD?src=/program_offices/administration/hudclips/handbooks/admh/2225.6.
\3\ http://www.hud.gov/offices/adm/hudclips/handbooks/cioh/.
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In response to commenters' concerns, HUD is revising its System of
Records notice for the EDMS to clarify that original documents are not
destroyed as part of HUD's E-Discovery efforts. Revisions to the text
of the Retention and Disposal Section that follows should clarify the
process. For the convenience of the public, HUD is providing a complete
summary within this notice of the location, purposes, and operational
description of EDMS to facilitate comment.
Authority: 5 U.S.C. 552a; 88 Stat. 1896; 42 U.S.C. 3535(d).
Dated: November 7, 2012.
Jerry E. Williams,
Chief Information Officer.
SUMMARY DESCRIPTION OF EDMS
OGC.CAGC.01
SYSTEM NAME:
Office General Counsel Electronic Discovery Management System.
(OGC-EDMS)
SYSTEM LOCATIONS:
The EDMS application will be stored on servers located at 4701
Forbes Boulevard, Lanham, MD 20706. Custodian data to be retrieved is
stored on servers and HUD workstations located throughout the
country.\4\
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\4\ http://portal.hud.gov/hudportal/documents/huddoc?id=append2.pdf.
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PURPOSES:
OGC-EDMS provides OGC with a method to initiate, track, and manage
the collection, organization, and production of paper and electronic
documents for discovery requests, such as litigation hold memoranda, E-
Discovery certifications, electronically stored information (ESI)
search requests, closure letters, and any other documents and data
relevant to the discovery process requiring analysis, review,
redaction, and production to respond to litigation discovery
requirements. The purpose of this system is to assist HUD to collect
electronically stored information and data of any individual who is, or
will be, in litigation with HUD, as well as the attorneys representing
the plaintiff(s) and defendant(s) in response to claims by
[[Page 68142]]
employees, former employees, and other individuals; to assist in the
settlement of claims against the government; to represent HUD during
litigation, and to maintain internal statistics. A new software
component is being added to HUD's EDMS process that will streamline the
collection, storage, and analysis of case data to be responsive to
requests to HUD.
On December 1, 2006, the Federal Rules of Civil Procedure were
amended to create and clarify responsibility for preserving and
accessing ESI. The obligation to preserve ESI, as well as paper
records, begins when an individual ``reasonably anticipates''
litigation and concludes that the evidence may be relevant to such
future litigation. Once an individual ``reasonably anticipates''
litigation, he/she must suspend any document alteration or destruction
to ensure the preservation of relevant documents and electronically
stored information, including emails.
EDMS and its various capabilities will allow OGC to streamline and
automate the document and data reviews it conducts, allow the attorneys
to analyze the information in different formats, conduct the analysis
in bulk more efficiently, and protect unwarranted disclosure of
information by flagging files that contain information therein that is
protected from disclosure.
AUTHORITY FOR MAINTENANCE OF THE SYSTEM:
The federal regulation(s)/statute(s) that gives OGC the authority
to collect and store this information is Federal Rules of Civil
Procedure (FRCP) 16(b) which allows the court to establish rules around
disclosure, privilege, methods and work product prior to electronic
discovery commencing. In this context, disclosure is the collection of
data. Other relevant regulations surrounding the collection and
management of electronic discovery are FRCP 26(b)(2), 26(b)(5)(B),
26(f), 33(d), 34(a), 34(b), 37(f), and 45.
CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:
Categories of individuals covered by this system include: (1) All
persons subject to a litigation hold due to a ``reasonable anticipation
of litigation'' as determined by HUD's OGC; (2) all persons deemed a
participant of past or present litigation, investigations, or
arbitration where HUD is involved; and (3) specified individuals
impacted by FOIA requests, litigation, and other cases in HUD.
A wide variety of individuals are covered by the system including:
individuals who either file administrative complaints with HUD or are
the subject of administrative complaints initiated by HUD; individuals
who are named parties in cases in which HUD believes it will or may
become involved; individuals involved in matters within the
jurisdiction of HUD either as plaintiffs or as defendants in both civil
and criminal matters; witnesses, and to the extent not covered by any
other system, tort and property claimants who have filed claims against
the Government; individuals who are the subject of an action requiring
approval or action by a HUD official, such as appeals, actions,
training, awards, promotions, selections, grievances and delegations,
including the OGC attorneys to whom cases are assigned, and attorneys
and authorized representatives for whom HUD has received complaints
regarding their practices before HUD.
CATEGORIES OF RECORDS IN THE SYSTEM:
Categories of records in this system include: (1) Custodian name;
(2) Custodian work address; (3) Custodian email address; (4) Case Name;
(5) Case number; (6) Custodian email data, including messages among
other HUD employees and/or personnel of other federal agencies or
outside entities, and attachments; (7) Custodian local/shared drive
data of information collected or compiled from law enforcement or other
agency databases; (8) Spreadsheets including data collections, often
including personally identifiable information and sensitive law
enforcement data used to track the process or investigations or focus
investigative priorities; records relating to litigation by or against
the U.S. Government (or litigation in which the U.S. Government is not
a party, but has an interest) resulting from questions concerning HUD
cases and legal actions that HUD either is involved in or in which it
believes it will or may become involved; claims by or against the U.S.
Government, other than litigation cases, arising from a transaction
with HUD, and documents related thereto, including demographic
information, vouchers, witness statements, legal decisions, and related
material pertaining to such claims; investigation reports; legal
authority; legal opinions and memoranda; criminal actions; criminal
conviction records; claims and records regarding discrimination,
including employment and sex discrimination; claims and records
regarding the Rehabilitation Act of 1973 (26 U.S.C. 701); personnel
matters; contracts; foreclosures; actions against HUD officials;
records relating to requests for HUD records other than requests under
the Freedom of Information Act and the Privacy Act of 1974; testimonies
of HUD employees in federal, state, local, or administrative criminal
or civil litigation; documentary evidence; supporting documents
including the legal and programmatic issues of the case,
correspondence, legal opinions and memoranda and related records;
security clearance information; any type of legal document, including
but not limited to complaints, summaries, affidavits, litigation
reports, motions, subpoenas, and any other court filing or
administrative filing or evidence; employee and former employee ethics
question forms and responses; and court transcripts.
ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES
OF USERS AND PURPOSES OF SUCH USES:
1. To a Congressional office from the record of an individual in
response to an inquiry from that Congressional office made at the
request of the individual to whom the records pertain;
2. To the National Archives and Records Administration for use in
its records management inspections and its role as an Archivist;
3. To the Department of Justice (DOJ) when seeking legal advice for
a HUD initiative or in response to DOJ's request for the information,
after either HUD or DOJ determine that such information is relevant to
DOJ's representatives of the United States or any other component in
legal proceedings before a court or adjudicative body, provided that,
in each case, the agency also determines prior to disclosure that
disclosure of the records to the DOJ is a use of the information
contained in the records that is compatible with the purpose for which
HUD collected the records. HUD on its own may disclose records in this
system of records in legal proceedings before a court or administrative
body after determining that the disclosure of the records to the court
or administrative body is a use of the information contained in the
records that is compatible with the purpose for which HUD collected the
records; or to another agency or to an instrumentality of any
governmental jurisdiction within or under the control of the United
States for a civil or criminal law enforcement activity if the activity
is authorized by law, and if the head of the agency or instrumentality
has made a written request to the agency which maintains the record
specifying the particular portion desired and the law enforcement
activity for which the record is sought;
4. To third parties during the course of a law enforcement
investigation to
[[Page 68143]]
the extent necessary to obtain information pertinent to the
investigation;
5. To contractors, grantees, experts, consultants, and the agents
thereof, and others performing or working on a contract, service,
grant, cooperative agreement, or other assignment for HUD, when
necessary to accomplish an agency function related to its system of
records. Individuals provided information under this routine use are
subject to the same Privacy Act requirements and limitations on
disclosure as are applicable to HUD officers and employees;
6. To third parties during the course of a law enforcement
investigation to the extent necessary to obtain information pertinent
to the investigation, provided disclosure is appropriate to the proper
performance of the official duties of the officer making the
disclosure;
7. To a court, magistrate, or administrative tribunal in the course
of presenting evidence, including disclosures to opposing counsel or
witnesses in the course of civil discovery, litigation, or settlement
negotiations or in connection with criminal law proceedings or in
response to a subpoena;
8. To a grand jury agent pursuant either to a federal or state
grand jury subpoena, or to a prosecution request that such record be
released for the purpose of its introduction to a grand jury, where the
subpoena or request has been specifically approved by a court; and
9. To appropriate agencies, entities, and persons when: (a) HUD
suspects or has confirmed that the security or confidentiality of
information in a system of records has been compromised; (b) HUD has
determined that as a result of the suspected or confirmed compromise
there is a risk of harm to economic or property interests, identity
theft or fraud, or harm to the security or integrity of systems or
programs (whether maintained by HUD or another agency or entity) that
rely upon the compromised information; and (c) the disclosure made to
such agencies, entities, and persons is reasonably necessary to assist
in connection with HUD's efforts to respond to the suspected or
confirmed compromise and prevent, minimize, or remedy such harm for
purposes of facilitating responses and remediation efforts in the event
of a data breach.
POLICIES FOR STORING, RETRIEVING, AND DISPOSING OF SYSTEM RECORDS:
STORAGE:
Data collected by OGC-EDMS is stored electronically in a Storage
Area Network/Network Attached. There are no manual records stored or
maintained outside the system. Storage is at a secure Lockheed Martin
facility, and backed up via an Avamar Backup Storage system.
RETRIEVABILITY:
Records will be retrieved by the (1) Custodian name; (2) Work
address; (3) Custodian email address; (4) Case name; (5) Case number;
(6) Custodian email data; (7) Custodian local drive data; (8) Custodian
home/shared drive data; (9) Litigation hold closures; (10) Litigation
hold memoranda; (11) Litigation preservation notices; (12) Litigation
hold reminder notices; and (13) ESI identification email notifications.
E-Discovery notifications data is only accessed by individually
assigned legal counsel on a case by case basis.
SAFEGUARDS:
Strict controls have been imposed to minimize the risk of
compromising the information that is being stored. Access to the
computer system containing the records in this system is limited to
those individuals who are authorized to access by appropriate security
clearances and user ID/password permissions. Only assigned users with a
need-to-know are allowed access, on a case-by-case basis after going
through HUD's background investigation process.
RETENTION AND DISPOSAL:
In response to the FRCP 16(b), when litigation is ``reasonably
anticipated,'' related electronic data is copied and maintained in a
secure server environment separate from HUD's network servers as part
of the EDMS.\5\ Upon authorization from a HUD Associate General
Counsel, Regional Counsel, or other designated official, OGC closes a
case. The closed case and related electronic litigation data that has
been copied and secured in a production environment for the purposes of
litigation is purged electronically from the EDMS. The purging process
does not extend to purging electronic data from its original source,
such as network servers. Electronic data is properly retained on
network servers and other sources as required by HUD's Office of
General Counsel Records Disposition Schedule 2--Legal Records, 2225.6
REV-1, CHG-APPENDIX 2 \6\ and the Electronic Mail Policy, 2400.1 REV01,
CHG.\7\
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\5\ Other relevant regulations surrounding the collection and
management of electronic discovery are FRCP 26(b)(2), 26(b)(5)(B),
26(f), 33(d), 34(a), 34(b), 37(f), and 45.
\6\ http://portal.hud.gov/hudportal/HUD?src=/program_offices/administration/hudclips/handbooks/admh/2225.6.
\7\ http://www.hud.gov/offices/adm/hudclips/handbooks/cioh/.
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SYSTEM MANAGERS AND ADDRESSES:
Office of General Counsel (OGC) Tenille Washburn, Assistant General
Counsel, Field Management and IT Division, Department of Housing and
Urban Development, 1250 Maryland Avenue SW., Suite 200, Washington, DC
20024. The phone contact information is (202) 402-6536. This is not a
toll free number.
NOTIFICATION AND RECORD ACCESS PROCEDURES:
Individuals seeking to determine whether this system of records
contains information about them, or those seeking access to such
records, should address inquiries to Donna Staton-Robinson, Chief
Privacy Officer, Department of Housing and Urban Development, 451 7th
Street SW., Room 4156, Washington, DC 20410. (Attention: Capitol View
Building, 4th Floor.) The phone contact information is (202) 708-5495.
This is not a toll free number. Provide verification of your identity
by providing two proofs of official identification. Your verification
of identity must include your original signature and must be notarized.
CONTESTING RECORD PROCEDURES:
HUD's rules for contesting the contents of records and appealing
initial denials by the individual concerned appear in 24 CFR part 16.
If additional information or assistance is needed, it may be obtained
by contacting HUD officials as follows:
(i) Contesting contents of records: The Department of Housing and
Urban Development, Chief Privacy Officer, 451 Seventh Street SW.,
Washington, DC 20410;
(ii) Appeals of initial HUD determinations: In relation to
contesting contents of records, the HUD Departmental Privacy Appeals
Officers, Office of General Counsel, Department of Housing and Urban
Development, 451 Seventh Street SW., Washington, DC 20410.
RECORD SOURCE CATEGORIES:
Documents and records in this system originate from HUD and its
components, courts, subpoenas, law enforcement agencies, other federal,
state, and local agencies, inquiries and/or complaints from witnesses
or members of the general public.
[[Page 68144]]
EXEMPTIONS:
The records in EDMS are maintained for use in civil rather than
criminal actions. For that reason, the relevant provision of the
Privacy Act is 5 U.S.C. 552a(d)(5) which states ``nothing in this [Act]
shall allow an individual access to any information compiled in
reasonable anticipation of a civil action or proceeding.'' (See U.S.
Department of Justice, Office of Privacy and Civil Liberties, Overview
of the Privacy Act of 1974 (2010) 212.\8\)
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\8\ http://www.justice.gov/opcl/1974tenexemp.htm#one.
[FR Doc. 2012-27806 Filed 11-14-12; 8:45 am]
BILLING CODE 4210-67-P